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Anthony J. Bellia

2013

Constitutional Law

Customary international law

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The Law Of Nations As Constitutional Law, Anthony J. Bellia, Bradford R. Clark Oct 2013

The Law Of Nations As Constitutional Law, Anthony J. Bellia, Bradford R. Clark

Anthony J. Bellia

Courts and scholars continue to debate the status of customary international law in U.S. courts, but have paid insufficient attention to the role that such law plays in interpreting and upholding several specific provisions of the Constitution. The modern position argues that courts should treat customary international law as federal common law. The revisionist position contends that customary international law applies only to the extent that positive federal or state law has adopted it. Neither approach adequately takes account of the Constitution’s allocation of powers to the federal political branches in Articles I and II or the effect of these …